DARREN NIMMO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 661

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 661

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6075

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DARREN NIMMO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Presiding Member
Dr M. Miller AO

Date13 August 2009

PlaceCanberra

Decision The decision under review is affirmed.

...................[sgd]...........................

Mr S. Webb, Presiding Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - impairments - not fully treated - decision affirmed

Social Security Act 1991 s 94, Schedule 1B

Social Security (Administration) Act 1999 ss 42, Schedule 2

REASONS FOR DECISION

13 August 2009 Mr S. Webb, Presiding Member
Dr M. Miller AO     

1.      Darren Nimmo injured his lower back and experienced disabling symptoms. He consulted his treating doctor and claimed Disability Support Pension (DSP). His claim was rejected by primary determination, on review and by the Social Security Appeals Tribunal. Mr Nimmo is not satisfied with that result.

2.      The matter came on for hearing before us today. Having heard and carefully considered all of the evidence, we decided to affirm the decision to reject Mr Nimmo’s claim. The decision and brief reasons were given orally at the conclusion of the hearing. Mr Nimmo has requested written reasons, which follow.

3.      The issue to be determined is Mr Nimmo’s qualification, or otherwise, for DSP on the day he lodged his claim, 16 May 2008, or within the 13 week period immediately thereafter – to 16 August 2008 (the qualification period).[1] It is to that period that our attention is directed. Evidence of subsequent events has been taken into evidence and considered, but only in relation to the qualification period.

[1] Section 42 and Schedule 2, Social Security (Administration) Act 1999.

4. The qualification criteria for DSP are set out at s 94 of the Social Security Act 1991, in relation to which the following questions must be addressed:

(a)Does Mr Nimmo have one or more impairments?

(b)Has each impairment been fully documented, diagnosed, investigated, treated and stabilised?

(c)Is each impairment permanent – is it likely to continue for at least 2 years from the date of claim?

(d)For each impairment that is fully documented, diagnosed, investigated, treated, stabilised and permanent:

(i)which Impairment Tables set out at Schedule 1B of the Act apply, and

(ii)how many impairment points are appropriate under each Table?

(e)If 20 or more impairment points are allocated in aggregate, does the impairment of itself give rise to a continuing inability to:

(i)do any work for 15 or more hours per week, or

(ii)undertake a training activity, or if not, the training activity would be unlikely to enable the person to do any work

within two years from the date the claim was lodged?

5. The respondent Secretary informed us that it is not disputed that Mr Nimmo has a lower back impairment for the purposes of subs 94(1)(a) of the Act.

6.      Considering the present medical evidence and Mr Nimmo’s unchallenged evidence concerning his medical conditions, the generality of that concession occludes the specific medical conditions from which he suffers. For the purposes of the section it is necessary to consider each of the medical conditions in order to determine whether an impairment is made out. Paragraph 94(1)(a) refers to ‘a physical, intellectual or psychiatric impairment’. The word ‘impairment’ is not given any special meaning and can readily be understood by reference to its ordinary meaning in common usage. The Oxford English Dictionary provides the following definition:

1. To make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.

2. To grow or become worse, less valuable, weaker, or less; to suffer injury or loss; to deteriorate, fall off, or decay.

Thus, applying that meaning, Mr Nimmo will have an impairment of the requisite kind if one or more of his medical conditions constitute or result in any physical, intellectual or psychiatric weakening, damage or loss.

7.      We are reasonably satisfied that Mr Nimmo suffers from the following medical conditions:

(a)an L5/S1 disc protrusion;[2]

(b)a plexiform neurofibroma surrounding the dorsal ramus of the left L3 nerve;[3]

(c)lumbar spondylosis;[4]

(d)a left elbow injury that occurred when Mr Nimmo was 16 years old;[5]

(e)a right eye injury that occurred when Mr Nimmo was 13 years old.[6]

[2] Exhibit A1, Exhibit A2, Exhibit A3 and T25 folio 113.

[3] Exhibit A4.

[4] T13 folio 71.

[5] Oral evidence of Mr Nimmo.

[6] Oral evidence of Mr Nimmo.

8.      Mr Nimmo gave evidence that was not challenged concerning his lower back symptoms. We are satisfied that Mr Nimmo gave his evidence honestly and without reserve. He is a witness of truth and we accept his evidence. Thus, we accept that he injured his lower back on 28 November 2006 while shovelling sand into a cement mixer with a friend, and that he has subsequently experienced fluctuating but ongoing symptoms of discomfort, pain and stiffness “around the belt line” in his lower back.

9.      It is plain enough that Mr Nimmo has a disc protrusion at the L5-S1 level in his lumbar spine. Dr Pik’s evidence is that this does not compromise the nerve root, whereas Dr Somasundaram is of the opinion that the L5-S1 disc has prolapsed and is displacing the right S1 nerve root. Neither doctor was called to give evidence. Nevertheless, it appears that Dr Pik considered that Mr Nimmo’s low back symptoms “may very well be arising from the L5/S1 disc”.[7] Support for Dr Somasundaram’s opinion is found in Dr Hoy’s CT scan report, in which he observes that “the L5-S1 disc is impressing the thecal sac in the midline and possibly displacing the right S1 nerve root at the disc level”. [8] We note that Dr Thomson’s observation in his MRI scan report that there is “potential irritation of the S1 nerve roots at L5/S1 but no L5 compromise is seen”.[9] On this evidence we find that the L5-S1 disc protrusion in Mr Nimmo’s lumbar spine is an impairment for present purposes.

[7] Exhibit A1.

[8] T25 folio 113.

[9] Attachment in Exhibit A1.

10.     We accept that the L5-S1 disc protrusion either occurred or was rendered symptomatic on 11 November 2006 and has remained so to a fluctuating degree.

11.     The evidence of Dr Somasundaram and Dr Pik is that treatments for this impairment include, initially, physiotherapy and analgesic anti-inflammatory medication. It is conceivable that physiotherapy treatment may not alleviate or cure his symptoms, in which case surgical or other treatment options may rise for consideration; equally it is possible that it will alleviate his lower back symptoms. That much, at least, can be discerned from the evidence of Dr Somasundaram and Dr Pik.

12.     By Mr Nimmo’s own account he has obtained pharmacological treatment (Voltaren Rapid 50 tablets), but he has not obtained physiotherapy treatment either prior to, during or after the qualification period. Mr Nimmo explained that he had not obtained any such treatment because he could not afford to do so and he was, in effect, in a ‘catch 22’ situation – he cannot afford to obtain the treatment unless it is subsidised, but he cannot obtain the subsidy without being granted DSP. We do not accept that proposition. Mr Nimmo may be able to access subsidised physiotherapy treatment in a clinic at the Canberra Hospital with a referral from his treating doctor. Nevertheless, the fact that Mr Nimmo has not obtained the recommended treatment for his L5-S1 impairment compels us to conclude that the impairment has not been fully treated and stabilised.

13. Mr Nimmo has a plexiform neurofibroma at the L3 level that was diagnosed in 2001. By his own account this condition has not caused any symptoms of significance; Mr Nimmo described simply being aware of the palpable lump when seated. Mr Nimmo gave evidence that the neurofibroma has increased from fingertip size to golf ball size over the intervening years from 2001. He adduced no evidence to support this proposition, but his evidence was not challenged and we can accept that a tumour of this nature may be expected to increase in size gradually over time. Significantly, there is no evidence that the tumour is causing symptoms in Mr Nimmo’s lower back, despite the plain fact that it involves the left L3 nerve root. Thus, on the present evidence, it appears likely that the L3 neurofibroma is not the cause of Mr Nimmo’s disabling back symptoms, although we cannot rule out that possibility. Nevertheless, this physical condition is plainly an impairment for the purposes of subs 94(1)(a) of the Act. Even if we accept that this impairment was fully documented, diagnosed, investigated, treated, stabilised and likely to persist for at least 2 years (and we have some difficulty making any such determination on the present evidence), it would not assist Mr Nimmo’s case. On his own evidence the impairment would not attract any impairment rating under the Tables set out at Schedule 1B of the Act.

14.     Dr Somasundaram reported a diagnosis of lumbar spondylosis in the Treating Doctor’s Report that formed part of Mr Nimmo’s claim for DSP.[10] That diagnosis is supported by Dr Hoy’s reference to a “lumbrosacral CT 16/09/04 showing L4-5 spondylosis”.[11] That CT scan, however, is not in evidence before us. Nevertheless, we are prepared to accept Dr Somasundaram’s diagnosis, especially as there is no report of symptoms that may be consistent with radiculopathy arising from the L5-S1 disc. On that basis it can be accepted that Mr Nimmo’s lumbar spondylosis may contribute to his lumbar symptomatology. We are prepared to accept, albeit with some reservations, that the lumbar spondylosis is an impairment for the purposes of subs 94(1)(a) of the Act. Nevertheless, as we have said, Mr Nimmo did not obtain the recommended physiotherapy treatment for his lumbar impairments either before, during or after the qualification period.

[10] T13.

[11] T25 folio 113.

15.     It follows that we are compelled to find that Mr Nimmo’s lumbar spondylosis had not been fully treated and stabilised during the qualification period and cannot, therefore, be assessed under the Tables set out in Schedule 1B of the Act.

16. On Mr Nimmo’s evidence, his left elbow injury caused ligamentous damage that healed imperfectly and may require further treatment. He informed us that this condition causes some weakness and occasional locking in his left arm. Mr Nimmo informed us that his left arm condition does not cause significant disability, however, and it is not part of his claim for DSP. There is no medical evidence before us concerning Mr Nimmo’s left elbow condition. However, we accept his evidence and find that his left elbow condition constitutes a present impairment for the purposes of subs 94(1)(a) of the Act. This does not assist his case, however. Even if we accept that his left arm condition is fully treated and permanent, on the basis that it is reasonable for him to decline surgical treatment, by his own account his left arm impairment is not the cause of any significant functional disability, and it would not attract a rating greater than zero under the applicable Table at Schedule 1B.

17. Mr Nimmo gave evidence that his right eye injury resulted in permanent double vision. By his account this condition does not cause significant disability and is not part of his present claim. There is no medical evidence concerning Mr Nimmo’s vision or his right eye injury before us. Nevertheless, we accept Mr Nimmo’s evidence concerning his double vision and find, therefore, that his right eye condition is an impairment for the purposes of subs 94(1)(a) of the Act. There is no medical evidence before us concerning Mr Nimmo’s right eye impairment. No reference was made to this condition in the Treating Doctor’s Report prepared by Dr Somasundaram. Even if we accept that this impairment is fully documented, diagnosed, investigated, treated and stabilised, and is permanent (and we have difficulty making any such determination on the present evidence), it does not assist Mr Nimmo’s case. His own account, which we accept, is that the vision impairment is not the cause of functional difficulty – he was able to play 1^st grade football for many years with this impairment, for example. On that basis, this impairment does not justify a rating above zero on any applicable Table at Schedule 1B of the Act.

18.     We note and accept that Mr Nimmo is not pressing any claim in relation to his L3 neurofibroma, left arm and right eye impairments.

19. It follows, in conclusion therefore, that Mr Nimmo’s impairments do not warrant a rating of 20 or more impairment points for the purposes of subs 94(1)(b) of the Act. That being so, he does not satisfy the qualification criteria for DSP within the qualification period and his claim must fail. Unfortunately for Mr Nimmo, we are compelled to affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed:  ...................[sgd]...........................................
  J. Lakin, Associate

Date of Hearing  13 August 2009
Date of Decision  13 August 2009
Date of Written Reasons                1 September 2009
Applicant self-represented
Advocate for the Respondent        Ms K. Horan, Centrelink Legal Services
  Ms J. Furner, Centrelink Legal Services